USA – NEW YORK Trends and Developments Contributed by: Tracey Levy, Simone Handfield and Raphael Lee, Levy Employment Law, LLC
Employee Complaints: When Is Behaviour Considered “Bullying”? As tensions rise in society at large and virulent lan - guage and violence appear to be more prevalent, employees appear increasingly to be holding their managers to higher standards of civility and respect. HR Acuity reported in its Ninth Annual Employee Rela - tions Benchmark Study that 30% of organisations saw some or a significant increase in bullying complaints over the past two years. The Society for Human Resource Management also reports elevated levels of incivility in workplaces and more so in society at large since it instituted an “incivility index” in early 2024. There is a sliding scale between what may be consid - ered suboptimal or bad management practices, “bul - lying” and “harassment”. When behaviours prompt an employee complaint, a workplace investigator first needs to determine whether the reported behav - iours actually occurred. Then the investigator needs to evaluate where a manager’s conduct falls on the spectrum. Bullying or bad management? An employee may dislike receiving feedback that the employee is not meeting performance expectations or workplace conduct standards. However, not every harsh or critical communication by a manager qualifies as “bullying”. Some organisations have detailed poli - cies that provide a definition of bullying with specific examples. Many organisations have less explicit poli - cies against bullying, or none at all. The nature of the behaviour, whether it is targeted, and the reason for the behaviour are often critical to determining whether a manager has crossed the line between appropriate feedback and inappropriate behaviour. The distinction is reflected in existing legal definitions of “abusive conduct”, which require a certain degree of malevolence or hostility before workplace behav - iours will be considered to be “bullying”. Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment”. California, which requires harassment prevention training to expressly
it is a shorter statement of largely generalised alle - gations, with perhaps one or two brief anecdotes as examples. Increasingly though, we are seeing sub - stantially more voluminous complaints, ranging from ten to 75 pages, that appear to have been amplified by AI. The hallmarks of an AI-enhanced complaint, beyond its length, may include: • advocacy focus – lots of headings each framed as a legal argument or defence; • the same examples repeated under multiple head - ings, often with slight differences in either phrasing or detail; • absence of narrative – “the story” gets buried in the argument; and • circularity of reasoning – the same points get reframed multiple times, with slightly different ver - biage, to elaborate on prior points or as support for additional grounds of complaint. Work with what you have As with any other written complaint, when a complaint appears to have received an AI “boost”, the investi - gator still needs to review the information provided to identify the concerns the employee is raising rela - tive to the organisation’s policies and track the factual information the employee has provided in support of each concern. Factual information may be overstated or misrepresented; that is not unique to AI complaints, but rather lies at the heart of why an investigation is being conducted – to identify what more likely than not occurred. Investigators cannot disregard a complaint just because it is long, rambling and/or argumentative. Nor is it advisable to reject it and ask the complainant to revise it to something more digestible. An investigator who puts the complaint aside and relies solely on that which is recounted in an intake interview may thereby overlook relevant information. In short, the review process is the same; the work is just much harder and more time-consuming with an AI-amplified complaint.
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